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Toribio-Ruiz v. Baca

United States District Court, D. Nevada

September 18, 2017

HERIBERTO TORIBIO-RUIZ, Petitioner,
v.
ISIDRO BACA, et al., Respondents.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before the Court are the second amended petition for writ of habeas corpus (ECF No. 31), respondents' motion to dismiss (ECF No. 40), petitioner's opposition (ECF No. 59), and respondents' reply (ECF No. 60). The Court finds that petitioner has not exhausted his available state-court remedies for all his grounds for relief. The Court grants the motion in part.

         II. DISCUSSION

         Respondents first argue that in grounds 2 and 3 petitioner has not identified decisions of the Supreme Court of the United States. The Court has addressed this issue already. Again, 28 U.S.C. § 2254(d) does not impose a pleading requirement that a petitioner cite specific cases. This Court is able to analyze the decisions of the Nevada Supreme Court under § 2254(d) even without citations in the second amended petition.[1]

         Second, [2] respondents argue that petitioner has failed to develop the factual basis for the claim alleged in ground 4(b). Such a failure, if true, would affect this Court's ability to order an evidentiary hearing and this Court's analysis on the merits. However, it is not an issue that the Court would address on a motion to dismiss.

         Third, respondents argue that grounds 1[b] and 2[g] are frivolous.[2a] The Court rejects respondents' argument for the reasons stated at pages 16-17 of the opposition. (ECF No. 59.)

         Fourth, respondents argue that petitioner has not exhausted his state-court remedies for grounds 4(b), 4(c), 4(d), 4(e), 5, and 6. Before a federal court may consider a petition for a writ of habeas corpus, the petitioner must exhaust the remedies available in state court. 28 U.S.C. § 2254(b). To exhaust a ground for relief, a petitioner must fairly present that ground to the state's highest court, describing the operative facts and legal theory, and give that court the opportunity to address and resolve the ground. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Anderson v. Harless, 459 U.S. 4, 6 (1982).

         Petitioner acknowledges that all the challenged grounds are unexhausted. Petitioner and respondents agree that grounds 4(b), 4(d), 4(e), 5, and 6 are not exhausted because petitioner did not raise the issues contained in those grounds on appeal from the denial of his post-conviction state habeas corpus petition.[3]

         Petitioner asks the Court to consider the grounds procedurally defaulted and then asks the Court to excuse those procedural defaults. First, he states that if he returned to state court, he would be subject to the time bar of NRS § 34.726(1) and the successive-petition bar of NRS § 34.810. Second, although those statutes allow for a showing of cause and prejudice to excuse their operation, he states that he cannot make that showing in state court. Normally, the Court would not accept petitioner's argument. With one exception, Nevada's standards for cause and prejudice are the same as the federal standards. However, petitioner states that his only arguments for cause and prejudice is the ineffective assistance of his initial post-conviction counsel. (ECF No. 59 at 6.[4]

[W]hen a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective-assistance claim in two circumstances. The first is where the state courts did not appoint counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial. The second is where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 (1984). To overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit. Cf. Miller-El v. Cockrell, 537 U.S. 322 (2003) (describing standards for certificates of appealability to issue).

Martinez v. Ryan, 566 U.S. 1, 14 (2012). The Court later held that Martinez applies to procedurally defaulted claims of ineffective assistance of trial counsel in states that technically allow a person to raise an ineffective-assistance claim on direct appeal but actually provide no meaningful opportunity to develop the claim. Trevino v. Thaler, 133 S.Ct. 1911, 1921 (2013). Nevada generally requires a person to raise claims of ineffective assistance of counsel in state court through a post-conviction habeas corpus petition, unless the state district court had developed the facts of the claim before the filing of the direct appeal. Gibbons v. State, 634 P.2d 1214 (Nev. 1981). The Nevada Supreme Court has declined to follow Martinez, and it does not allow ineffective assistance of post-conviction counsel to be cause to excuse the procedural bars of § 34.726 and § 34.810. Brown v. McDaniel, 331 P.3d 867, 870-75 (Nev. 2014).

         Martinez does not apply to grounds 4(b), 4(d), 4(e), 5, and 6. Petitioner raised these claims in his proper-person post-conviction habeas corpus petition. The claims were not exhausted because counsel on appeal from the denial of the petition did not raise them before the Nevada Supreme Court. (See Exh. 209 (ECF No. 53-32).) Martinez does not apply to “attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings . . . .” 566 U.S. at 16.[5]

         Martinez also does not apply to ground 5 for another reason. Ground 5 is a claim of ineffective assistance of appellate counsel. Martinez does not extend to a procedurally defaulted claim of ineffective assistance of appellate counsel. Davila v. Davis, 137 S.Ct. 2058 (2017).

         Ground 4(c) is not exhausted for a different reason. In the second amended petition, petitioner alleged that he presented the issue now in ground 4(c) in his initial, proper-person post-conviction habeas corpus petition. (ECF No. 31 at 29.) Now, after respondents moved to dismiss, petitioner states that ground 4(c) never was raised in the state-court post-conviction proceedings. (ECF No. 59 at 3.) Petitioner's second statement is correct. The closest that petitioner came to raising the issue in ground 4(c) is in ground 5 of his proper-person state habeas corpus petition. In that ground, petitioner alleged that trial counsel provided ineffective assistance “at numerous instances and for numerous reasons.” (Exh. 101 (ECF No. 51-11 at 10).) That bare claim contained no facts and could not be a fair presentation of the issue now contained in ground 4(c). Ground 4(c) is unexhausted because it was not presented at any level of the state post-conviction proceedings. Ground 4(c) also is procedurally defaulted because, as noted above, petitioner admits that he has no arguments for cause and prejudice that the Nevada state courts would accept, and the Court takes petitioner's silence on the question of actual ...


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